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25154 - State v. Dickman
State v. Dickman


Shearouse Adv. Sh. No.
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court



The State, Respondent,



v.



Keith Dickman, Appellant.



Appeal From Beaufort County

Luke N. Brown, Jr., Circuit Court Judge



Opinion No. 25154



Heard May 24, 2000 - Filed June 19, 2000



AFFIRMED



Jared Sullivan Newman, of Daugs, Tedder &

Newman, of Port Royal, for appellant.



Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka,

Assistant Attorney General G. Robert DeLoach, III,

all of Columbia; and Solicitor Randolph Murdaugh,

III, of Hampton, for appellant.



JUSTICE MOORE: Appellant was convicted of murder and

sentenced to thirty years. We affirm.



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State v. Dickman





FACTS



On October 19,1997, a badly decomposed body was found in a wooded

area of Beaufort County. The body was later identified as Richard

Mandeville (Victim) who lived with appellant and John Seals. Victim had

been shot in the back of the head. When questioned by police, appellant and

Seals both said Victim had gone to California. Eventually, however, Seals

told police that appellant had shot Victim.







Seals testified at trial that appellant shot Victim while the three of

them were in appellant's car. Seals was driving, Victim was in the passenger

seat, and appellant was in the backseat behind Victim. After shooting

Victim, appellant directed Seals to drive to a remote area where they

removed the body from the car and dragged it into the woods. Seals emptied

Victim's pockets and threw Victim's wallet into the river on the way home.

The next day, appellant cleaned the blood from the inside of the car. 1









Appellant gave a statement to police. After initially indicating Seals

was the shooter, appellant told police he had shot Victim. At trial, appellant

recanted this statement and testified that Seals was the shooter.







ISSUE



Does the evidence support an accomplice liability charge?







DISCUSSION



Over appellant's objection, the trial judge charged the jury that

appellant could be found guilty under a theory of accomplice liability based

on "the hand of one is the hand of all." See State v. Crowe, 258 S.C. 258, 188

S.E.2d 379 (1972) (if two or more combine together to commit an unlawful

act and a homicide is committed by one of the actors as a probable or natural

consequence of the acts done in pursuance of the common design, all present

participating in the unlawful undertaking are as guilty as the one who

committed the fatal act). Appellant contends this was error.




1 Seals was charged with misprison (or misprision) of a felony for his

involvement in these events.





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State v. Dickman





At trial, appellant objected to a charge on accomplice liability because

the indictment charged him only as a principal. It is well-settled that a

defendant may be convicted on a theory of accomplice liability pursuant to an

indictment charging him only with the principal offense. State v. Leonard,

292 S.C.-133, 136, 355 S.E.2d 270 (1987); State v. Cox, 258 S.C. 114, 187

S.E.2d 525 (1972); State v. Hicks, 257 S.C. 279, 185 S.E.2d 746 (1971); State

v. Hunter, 79 S.C. 73, 60 S.E. 240 (1908). Accordingly, this argument is

without merit. 2







On appeal, appellant argues the evidence does not support an

accomplice liability charge. This argument is procedurally barred since it

was not raised below. State v. Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995);

State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (a party cannot argue one

ground below and then argue another ground on appeal).







In any event, on the merits, we find the evidence supports the charge.

See State v. Burriss, 334 S.C. 256, 513 S.E.2d 104 (1999) (law to be charged

is determined from the evidence presented at trial and if any evidence exists

to support a charge, it should be given). The critical question is whether

there is any evidence appellant and Seals were acting together at the time of

the killing if Seals was the shooter as appellant claimed. Although on cross

examination appellant denied he and Seals planned to kill Victim that day,

his testimony on direct does provide some evidence of such a plan.







Appellant testified Seals asked him to kill Victim because Victim was

always behind on the rent. Appellant told another friend the murder would

be on a Sunday and the murder did in fact occur on a Sunday. On the day of

the murder, Seals tried to collect the rent from Victim without success.

When he subsequently saw appellant, Seals's first words to appellant were

"do it." Appellant testified, "I knew what he intended at that time."

Immediate thereafter, Seals called Victim on the telephone and arranged

to pick him up for the fatal car ride.




2 At oral argument, appellant relied on our recent opinion in State v.

Martin, Op. No. 25093 (S.C. Sup. Ct. filed March 27, 2000), as precedent to

the contrary. Martin, however, was withdrawn and refiled June 12, 2000.

In its revised version, Martin does not address this issue.



p.286


State v. Dickman







While they were driving, appellant found the gun wrapped in a towel

under the front seat where Seals had put it. He picked up the gun and held

it up for Seals to see in the rear view mirror. Appellant's nerve failed him

and he did not shoot. When Victim briefly left the car, appellant apologized

for not shooting and gave Seals the gun. The two had no further

communication between them before Seals allegedly shot Victim.







We find this testimony provides some evidence appellant and Seals

were acting pursuant to a plan to kill Victim at the time of the murder.

Accordingly, the charge on accomplice liability was properly submitted to the

jury.







Appellant's remaining issue is without merit and we dispose of it under

Rule 220(b), SCACR. See State v. Patterson, 324 S.C. 5, 482 S.E.2d 760

(1997) (any claim that jury was not impartial must focus on the jurors

actually seated).



AFFIRMED.



TOAL, C.J., WALLER, BURNETT, and PLEICONES, JJ., concur.



p.287